Injustice and § 2257 problems abound in Duckburg

By J. DeVoy

A-woo-oo!

Excellent question, Carl

By Tatiana von Tauber

Often I’ve been told America is and was founded as a “Christian nation”. As a devoted human being to all the people and roles in my life I attend to, I don’t have the time to research everything I want or should know. Good this post  in the Huffington Post  came up to remind me of some facts about American history and prompted my memory bank to dig up these beautiful words by Carl Sagan as written in “A Demon Haunted World” (pg. 428):

“When we consider the founders of our nation – Jefferson, Washington, Samuel and John Adams, Madison and Monroe, Benjamin Franklin, Tom Paine and many others – we have before us a list of at least ten and maybe even dozens of great political leaders. They were well educated. Products of the European Enlightenment, they were students of history. They knew human fallibility and weakness and incorruptibility. They were fluent in the English language. They wrote their own speeches. They were realistic and practical, and at the same time motivated by high principles. They were not checking the pollsters on what to think this week. They knew what to think. They were comfortable with long-term thinking, planning even further ahead than the next election. They were self-sufficient, not requiring careers as politicians or lobbyists to make a living. They were able to bring out the best in us. They were interested in and, at least two of them, fluent in science. They attempted to set a course for the United States into the far future – not so much by establishing laws as by setting limits on what kinds of laws could be passed.

[…]

At that time there were only about two and a half million citizens of the United States. Today there are about a hundred times more. So if there were ten people of the caliber of Thomas Jefferson then, there ought to be 10 x 100 = 1,000 Thomas Jeffersons today.

Where are they?”

Suicide note rights and liabilities

By J. DeVoy

By their very nature, suicide notes are controversial documents.  Nobody likes to think or talk about them, despite accompanying many – probably most – of the suicides that occur in America.  There were 34,598 reported suicide deaths in 2007 alone, making it the fourth leading cause of death for adults aged 18-65.

So, where to begin?

Who owns the note

A Slate article from 2008 states that either the medical examiner or sheriff “controls the contents” of a suicide note.  While true, Eugene Volokh notes that this does not resolve the issue of ownership.  The imperative to investigate deaths grants the government custody over the note, but not title to it; the note, like other personal property, becomes part of the deceased’s estate to be disposed of by will or intestacy under the relevant state’s law. (It would be particularly interesting to see how this issue would resolve in a community property state.)

Republication of the note

Often, suicide notes are not republished, except in notable cases like Joseph Stack’s.  To a large degree, this is out of sympathy for the affected family and, from a newsworthiness perspective, the relative obscurity of many people who commit suicide.  However, there’s another specter lurking in the background: Copyright.

Even without a copyright notice or registration, any note longer than a few words is protected by copyright.  As explained above, those rights transfer to the deceased’s family or heirs after his or her death, and they control the republication of the note.

Volokh, however, notes an end-run around this tactic: When the note has been placed on the public record, such as in a medical examiner’s findings or police record, it may be republished from there.  Although the initial note would be covered by copyright, the renderings of it available on the public record, generally obtained through a federal or state Freedom of Information Act request,  could be used as a matter of fair use – citing to a public record – without seeking the owners’ permission.

The blame game

Suicide notes sometimes identify people, entities and events that spurred the event.  This step is sardonically encouraged by some suicide note-writing guides.  For the above-stated reasons, though, the people responsible for the suicide are seldom publicly identified.  When they are, though, criminal and civil consequences can follow.

Mere allegations of blameworthiness do not create liability, but may point prosecutors and family members in the right direction.  In Eisel v. Board of Education for Montgomery County, 597 A.2d 447, 450 (Md. App. 1991), the Maryland Court of Appeals identified the dearth of relevant case law not only in its state, but in others as well, concerning parties who caused or failed to prevent – in breach of a pre-existing duty – a suicide.  In that case, the deceased’s school had notice of the girl’s suicidal intent, and may have breached its duty to prevent it. Id. at 456.  Also relevant is the Eastern District of Wisconsin’s holding in Logarta v. Gustafson, 998 F. Supp. 998, 1004, (E.D. Wis. 1998), that liability for suicide may be proper “where defendant’s negligent or criminal conduct can be said to have caused the deceased to commit suicide.”

Surprising, however, is the dearth of case law regarding the note-writer’s liability for blaming another person as the impetus for his or her action.  For the reasons described above, it is not certain that those blamed for the death would even know about it, as the notes are not often published and their contents may not be shared with people outside the family who may be upset by them.  This does not mean, however, that a person implicated in the suicide of another is without recourse.

First, the blamed party could try to bring an action for defamation.  This requires showing that he or she was defamed by a false statement in the writing, which was published, whether intentionally or negligently, and damage was done to the blamed party.  First, the scope and nature of publication will vary widely on a case-by-case basis, and may affect the damage calculation.  Just as the ancients wondered if a falling tree made sound if nobody heard it, does defamation cause sufficient damages to warrant a suit if nobody sees it?  Second, the statement may not be purely defamatory, and reasonable minds could differ about whether someone pushed the victim to commit suicide — something that a potential plaintiff may not want to reveal in the case’s pleadings, even if untrue.

Other causes of action that come to mind are intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).  For IIED, the note-writer would have to act intentionally or recklessly, the identification of the victim in the note would have to be extreme and outrageous, and be the cause of the identified party’s real, actual emotional distress.  First, even if the writer’s note is intentional – and it almost certainly is – is it extreme or outrageous to explain to loved ones the underlying causes of a dramatic decision?  Even if there’s a claim that it is outrageous, such as identifying a person responsible for the death with a paragraph-long rant about how the deceased hopes it haunts and ruins the identified person’s life forever, it is only words on paper, rather than the kind of in-person physical conduct associated with IIED.  Again, if someone wants to put the incident behind him or her, litigating what he or she is entitled to for being blamed in another person’s suicide seems like a poor way to get on with life.

In that vein, NIED also seems like a poor claim.  NIED requires an underlying duty between the note-writer and the identified person to exist, which is breached by harmful conduct — namely the writer’s identification of the other person, causing damage through extreme and outrageous conduct.  In addition to the above discussion regarding extreme and outrageous conduct, there is the difficulty of finding a duty between the note-writer and the identified person.  While courts may be quicker to find one where a pre-existing relationship exists, such as a familial bond, finding one between acquaintances or even nemeses seems like a more difficult proposition.  Additionally, many states have specific requirements for NIED recovery, such as allowing recovery only for physical injuries, requiring the injured person to be a family member, being in the zone of impact for physical injuries, showing physical harm evidencing emotional distress, and more.

Finally, there is the issue of taste.  Suing someone’s estate in the wake of suicide, even if potentially viable, would strike most people as despicable.  Even if a plaintiff identified in a suicide note is ready to go “all the way to the Supreme Court” (until he or she receives a bill, that is), it is unlikely that a lawyer worth his or her salt will take the case.  This effect likely would be amplified in small towns and close-knit communities.

Coda: Suicide is not a joke

Though this piece deals with serious and depressing subject matter, it is not designed or written to make light of it.  Those who have dealt with the death of a loved one, whether at their own hand or otherwise, have raw feelings the persist long after their friend or relative is gone.  That fact, however, does not extinguish the legal issues surrounding the event and its associated documentation.

Suicide is an individual choice.  Akin to abortion and the option to marry – and whom to marry, regardless of race, ethnicity or gender – it is a highly personal decision, even if the consequences are significant, far-reaching and permanent.  Nonetheless, those considering this course, or who know people that are – especially if a special relationship exists, as in Eisel, supra – are encouraged to reach out to their local government’s appropriate human services department.

Big pot joints big labor

By J. DeVoy

Despite the decline of organized labor in the United States with sagging manufacturing, construction and transportation sectors – areas long associated with unionized workforces – the Teamsters union has made inroads with medical marijuana growers. (source.)

The Teamsters added nearly 40 new members earlier this month by organizing the country’s first group of unionized marijuana growers. Such an arrangement is likely only possible in California, which has the loosest U.S. medical marijuana laws.

But it’s still unclear how the Teamsters will safeguard the rights of members who do work that’s considered a federal crime.

“I didn’t have this planned out when I became a Teamster 34 years ago, to organize marijuana workers,” said Lou Marchetti, who acted as a liaison between the growers and Oakland-based Teamsters Local 70. “This is a whole new ballgame.”

In the interest of fairness, the author bloodies the Teamsters’ collective nose a bit.  The union has a storied history, and its members are not strangers to sideways glances from Johnny Law.

Historically, the Teamsters are no strangers to entanglements with federal law enforcement, from the infiltration of the union by organized crime to the disappearance of union leader Jimmy Hoffa. If the federal government decided to crack down on [the indoor marijuana grower at issue], Marchetti said the union was still figuring out how it might intervene.

Still, there are unresolved issues as to the labor classification of these workers.  Depending on how the employees are classified by law, their employment may not be within the scope of the National Labor Relations Act and under the jurisdiction of the National Labor Relations Board, making their organization less effective.  Remedies within California – which is the most populous state in the country and arguably just as good as the Federal government in many respects – could still be available to the freshly unionized employees, though.

Michael Leong, assistant regional director for the Oakland office of the National Labor Relations Board, said he did not know of any case in which the federal government had been asked to mediate a dispute involving a business that was blatantly illegal under federal law.

He also said it wasn’t clear if the new Teamsters would count as farmworkers, which would put them outside the NLRB’s domain.

Michael Lee, general counsel for the California Agricultural Labor Relations Board, said the growers probably would qualify as agricultural workers. Any conflict between workers and the union would likely fall under his board’s jurisdiction, but contract disputes between workers and management would have to be decided in state court.

Octomom offered $500k to do porn

By J. DeVoy

Vivid Entertainment has offered Nadya Suleman, commonly known as Octomom, $500,000 for a single one-hour-long scene.  Based on her recent bikini photos, Suleman has recovered nicely from her extreme pregnancy, and such an offer is not unrealistic.

I think Vivid could have offered something in the $100-300k range, but what do I know?  It’s probably not in the company’s best interest to be seen as lowballing vulnerable quasi-celebrities who are facing foreclosure.

Not all animal testing is cruel

For example.

The Hoyts

Off topic, but epic win.

In Savannah we ask and we tell

By Tatiana von Tauber

It’s terribly difficult seeing the truth that sits before me.  In the #2 spot for romance and weddings in the U.S., love on the whole seems to be elusive rather than understood.

 

WJCL - FOX28 Savannah News

“The City of Savannah is considering extending benefits to same-sex couples.  Do you think the extension is a good idea?”

Yes: 21.1 %

No: 68.4 %

Not sure: 10.5%  (source)

Sorry to disappoint you Lady Gaga.

This week in good deeds

By J. DeVoy

Earlier this week I tried to start Ferdinand Bardamu’s political career.  I submitted evidence of my efforts to him, which is available at In Mala Fide.

The Art Cure for Boobies

by Tatiana von Tauber

As much as I fought integrating into Southern living, I’ve managed to walk into terrains new to me and it brought unexpected happiness. After a friend came down with stage IV cancer, I suddenly got tired of trying to make “my” life good. From the looks of it, it was. I was breathing with no possible end in its near future unless I was hit by a bus. Within a weekend I went from trying to figure out which way to tweak my professional life to creating an international art show and charity event, a most humbling experience that’s way overdue.

To share, I’ve founded The Art Cure. When I thought I wouldn’t make it through life’s struggles and its confusing emotions I dove into art and discovered a perception never seen before. It bettered me.

I decided to help others through my experience with art and invited breast cancer survivors to paint with me while I documented the experience in a book, The Art Cure Diaries, which you can view and purchase. The paintings created during the art sessions will be up for a silent auction October 1 to 29, 2010. Online bidding is available. I’ve put my heart and soul into this for the past 2 and a half months and I’d love your participation.

I invite you to look at the fabulous project I’ve been a part of and the incredible messages you – we – should keep in mind as we go about our daily lives. National Breast Cancer Month begins in October. You might be tired of all that pink stuff in its over commercialized state but after my experience with The Art Cure, I embrace pink in ways I never have.

The Art Cure has 23 paintings by survivors, their daughters and friends – the majority of whom thought they weren’t artists until I offered the opportunity for them to discover what was hidden. The best of what and who we are is often in the shadows. So rarely we allow ourselves to enter that world. Many of these women have never painted before. Judging from the results, you’d hardly know. I’m so very proud of them.  We also have works coming in from all over the world from other artists who wanted to be part of this event.

One hundred percent of all online silent auction sales will be donated to charity.

For details about the project, please visit www.theartcure.blogspot.com.  To view my latest interview with Savannah Now’s “Talking Real”, click here.

Below is my contribution to the silent auction and it’s up for bidding in October.  Make me proud, boys.  It’s for the boobies.

click to view larger

Don’t forget to view the exclusive final result of this entire project right here: The Art Cure Diaries book.  Its 152 pages are packed with beautiful photos, paintings and stories about women who survived or are undergoing breast cancer.  It’s a work of love and inspiration and recommended for anyone who has been touched by breast cancer in their lives.

he’s got a point…

Supreme Court Justice Questions the Right to Burn a Koran

by Charles Platt

On Good Morning America, Breyer compares burning a Koran to shouting “Fire!” in a crowded theater. I guess this must mean that if you do anything at all which upsets delusional wackos, you are not protected by the First Amendment. That’s good to know.

Well, Delaware *is* Below the Mason-Dixon Line, Right?

Congratulations, Delaware Republicans, you just nominated an actual, honest to goodness, imbecile.

Edit: Delaware is not below the Mason-Dixon line. That line takes a 90 degree turn and encompasses Delaware’s western border with Maryland.

Blog L00t!

W00t! W00t! It's the Hayes Blog L00t!

Hola! Chris is back with more L00T!  This is a lovely collection of the best from the friends of the Satyricon this week.

Corporate Stiffness is Bad for Innovation, Particularly in the Tech World

Being a Boston guy, I had to reference this post by Lee Gesmer at the Mass Law Blog.  The post presents the differences between the technology areas of the Rte 128 corridor in Massachusetts and Silicon Valley.  Gesmer points out the massive changes in the tech sector since the 1990s Internet boom in Silicon Valley, and how the region has left the Boston area in the dust.  It really comes down to the corporatist structures in the tech world that put Boston on the map in the 1980s despite lacking the openness and meritocracy of the entrepreneurs in Silicon Valley.  By the mid 90’s, Silicon Valley had left Boston’s tech corridor in the innovation dust, as the open networks and openness in the business culture allowed new ideas to thrive.  Check out the rest of the story at Mass Law Blog here.

Interfaith Projects Should Include Interfaith Religious Text Burnings

Ken Gibson at Windy Pundit appears to draw a different conclusion than most bloggers on the issue of the burning of Korans. Instead of trying to get upset about the burning of a holy text, perhaps we need to make the event more inclusive by burning numerous religious texts of many religions.  As Gibson suggests “barbecuing a cow using Bibles for fuel and using the ashes to draw Mohammed” may not go far enough.  Apparently many more religions should be involved.  Read more here.

Sex Offender Free Zones?

Gideon at A Public Defender blog writes an interesting piece here defending the rights of sex offenders.  This clearly doesn’t happen often so you should check it out.  Apparently, Connecticut has resisted efforts to clamp down on sex offenders by imposing residency restrictions.  Gideon believes that the Nutmeg state should be providing some sort of treatment centers for sex offenders, and it appears CT is seeking to do just that.  However NIMBY activists are on the march. Apparently the righteous residents of Montville, CT have sought to pass an ordinance banning sex offenders from parks, playgrounds and other places children inhabit.  Gideon argues that since we can never completely eradicate sex crimes against children, there may be more effective uses of police resources than standing around the park looking for predators.  See if you’re convinced, I’m not sure if I can get there.

Carl Paladino – the man to watch in November 2010

By J. DeVoy

“They say I’m too blunt.  Well, I am.”
– Carl Paladino, Sept. 14, 2010

Tonight, Carl Paladino cinched the Republican nomination for Governor of New York State.  Paladino, a lawyer-cum-real estate magnate in upstate New York, has had a storied past.  Before wading into the political realm, he would buy radio and print advertisements to air his grievances with people he disliked in New York, specifically local politicians in Upstate cities.

After announcing his candidacy, the Western New York media network obtained e-mails from Paladino, featuring racist photos and videos, pornography of all kinds, and general insanity.  In his own defense, Paladino described himself as “uninhibited and probably a little out of the box,” but “mean[ing] no harm to to anyone except the bad guys.”  He concluded his defense with “truth, justice, apple pie, motherhood, the wheels on the bus go round and round.”

Paladino’s campaigning extended into activities that could best be described as elaborate in-real-life (“IRL”) flame.  In Syracuse, Paladino used a man dressed as a chicken to insinuate his opponent, Rick Lazio, was afraid to debate him. (Famously, Lazio lost to Hillary Clinton in the 2000 senate race.)  Keeping with the avian theme of his tactics, Paladino sent a man dressed as a duck to “stalk” Democratic gubernatorial candidate Andrew Cuomo — a reference to Paladino’s charge that Cuomo has “ducked” questions about healthcare reform and other important issues.

A few short weeks before the primary, Paladino introduced his idea for the “Dignity Corps” — a modified welfare-to-work program.  Under Paladino’s vision, underutilized and empty prisons would be converted into centers where those on welfare and unemployment insurance can receive job training, state-sponsored work, housing and lessons in “personal hygiene.” (source.)  This proposal was, obviously, met with significant criticism by both Republicans and Democrats.

Now that Paladino has the backing of the New York GOP, he will be more visible for approximately two months.  Given the circumstances already surrounding New York’s Governor’s office – inhabited by a blind gentleman who recently signed the wrong state budget into effect after inheriting the office from a philandering Eliot Spitzer – the race should already garner national attention.  Paladino’s escapades will only give the media more fodder to follow and a greater reason to turn its eye toward the Empire State.

From a free speech perspective, I’m glad Paladino has the nod to go on to the gubernatorial election.  He’s a brash, controversial figure that will draw both intense support and vitriolic hatred.  As much as people might think his plans are insensitive and even reprehensible, the voters can make that decision now, rather than hypersensitive, triangulating political operatives.  This is New York State we’re talking about, and Carl may be relegated to his top-story keep in the Ellicott Square Building via electoral defeat, left to live the rest of his political career alone with his piles and piles of real estate money.

One thing appears clear, though: Paladino understands free speech.  He’s not afraid of making – and defending – pointed statements, as offensive or absurd as others may find them.  One hopes that he’ll extend this understanding to others as well, and there’s good reason, based on his own embrace of the First Amendment’s principles evidenced by his personal speech, that he will.  In the political forum, where words, expression and debate are so important, or at least supposed to be, this attribute is critically important.

For that reason alone, Carl, I’m with you.  I might not agree with everything you do and say, but your right to say it is vital.